Interim Decision #2392
MATTER. OF NRIrr.r,
In Exclusion Proceedings
A-19552590
Decided by Board May 16, 1975
The applicant in this case is a professional engineer who sought admission to the United
States as a visitor for business under section 101(a)(15)(13) of the Immigration and
Nationality Act. The applicant is a principal in a firm which employs 55 people and earns
about 20 per cent of its income from business in the United States. Applicant makes one
or more trips a week to the United States during which he spends some time soliciting
business; however the bulk of his time appears to be devoted to consulting with clients
and obtaining necessary information from them. Since only a small amount of his time is
spent soliciting business, and the majority of his time here appears to be spent in
connection with the rendition of his professional services as an engineer, he is in effect
extending his professional engineering practice to the United States. He may not, under
the classification of temporary visitor for business, extend his professional engineering
practice into the United States. Since he has not shown that he qualifies for admission as
a nonimmigrant, ho is presumed to he an immigrant having no visa, was properly found
excludable under section 212(a)(20) of the Act.
EXCLUDABLE: Act of 1952—Section 212(a)(20) (8 U.S.C. 1182(a)(20))—Immigrant--no
visa
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Seymour Nathanson, Esquire Irving A. Appleman
480 Congress Street Appellate Trial Attorney
Portland, Maine 04111
In a decision dated June 18, 1974, the immigration judge ordered that
the applicant be admitted to the United States as a nonimmigrant
business visitor. The Immigration and Naturalization Service has appealed from that decision. The appeal will be sustained.
The applicant is a native and citizen of Canada. He is a mechanical
engineer by profession, and he appears to be a principal in a Canadian
engineering firm which employs approximately 19 engineers and has a
total staff of 55 persons. The applicant is married, has children, and
owns property in Canada. The record indicates that he has no intention
of abandoning his Canadian residence.
The applicant seeks to enter the United States in connection with his
engineering practice. As of the date of the hearing, his Canadian. firm
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was earning approximately 30 percent of its income from clients located
in the United States. The firm's activities are evidently limited to
providing consultation on engineering problems and to doing the design
and drafting work on projects such as the installation and renovation of
machinery in paper mills.
Employees of the firm often enter the United States for the purpose
of consulting with clients. While in the United States, these employees
obtain information about the project on which they are working. Their
"on-site" labor is generally limited to the making of notes and drawings,
and to the taking of measurements. The drafting and design work is
performed in Canada at the offices of the firm. The applicant's firm does
not engage in the actual construction or installation of equipment; this
work is contracted out by the client.
The applicant spends some of his time in the United States soliciting
business; however, the bulk of his time here appears to be devoted to
consulting with clients and obtaining necessary information from them.
Most of his engineering-related trips to the United States are also of
short duratian. In the years when his firm first began doing work for
United Spates clients, the applicant evidently made fewer than ten such
trips here a Year, However, he now travels to the United States more
regularly, averaging one or more trips a week in connection with his
practice.
The narrcw question to be decided here is whether a professional
engineer, who reolarlytravels to,the United States in connection with
the rendition. of his professional services, may qualify as a nonimmigrant
business visitor under section 101(a)(15)(B) of the Immigration and
Nationality Act. Unless the applicant qualifies for a nonimmigrant
status, he is presumed to be an immigrant, and is inadmissible as an
immigrant without an immigrant visa. See section 214(b), Immigration
and Nationality Act.
The Service's basic position in this case appears to be that the applicant does not qualify as a business visitor because he does not seek to
enter temporarily. In advancing this position, the Service relies on
several cases dealing with temporary workers under section 101-
(a)(15)(H), and on several cases dealing with aliens who are coming to
the United ,States to perform work for hire on a regular and continuing
basis.
The cases concerning temporary workers, however, are not in point.
The Service appears to have construed section 101(a)(15)(H) as requiring that the job for which a temporary worker seeks admission be a job
of a temporary character, regardless of the alien's intended length of
stay. Matter of Contopoulos, 10 I. & N. Dec. 654 (Actg. R. C. 1964);
Matter of University of California Medical Center,
10 I. & N. Dec. 715
(R.C. 1964); iiiatter of M
— S H , 8 I. & N. Dec. 460 (ri.. C. 1959; Asst.
— —
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Interim Decision #2392
Comm. 1960), The case law with respect to business visitors has established no such requirement, and on the contrary indicates that the
business relationship may be of a continuing or long standing nature.
The only condition in this respect is that each visit be temporary in
duration. See Matter of Hira, 11 I. &N. Dec. 824, 827 (BIA 1965, 1966;
A.G. 1966); Matter of.Cortez-Vasquez, 10 I. & N. Dec. 544, 546 (BIA
1964); Matter ofP—, 8 L & N. Dec. 206, 207 (BIA 1958); Matter of M , —
6 I. & N. Dec. 533, 535 (BIA 1955); Matter of G—P—,
4 I. & N. Dec.
217, 221-22 (C.O. 1950). a a
There is language in several of the "business visitor" cases relied upon
by the Service which indicates that the temporary or permanent nature
of a job has a bearing on whether an alien's visit can be characterized as
temporary. See Matter of G—,
6 I. & N. Dec. 255, 256 (BIA 1954);
Matter of L—, 3 I. & N. Dee. 857 (BIA 1950). However, the precise
basis for decision in those cases is not entirely clear, and the results
reached are easily explainable under the view that the activities of the
aliens could not be considered "business" within the meaning of the
statute.
The nonimmigrant business visitor classification contained in section
101(a)(15)(B) must be construed, within the framework of the Act. Cf.
Matter of Udagawa, 14 L & N. Dec. 578 (BIA. 1974). For some time
now, Congress has sought to protect American workers from job competition of an undesirable, nature. See e.g. section 212(a)(14), Immigration and Nationality Act; section 3, Immigration Act, of 1917 (Act of
February 5, 1917,
39 Stat. 874, 875-78). This protection dearly extends
to members of the professions, as well as to workers who traditionally
might be considered skilled or unskilled laborers. See sections 212-
(a)(14), 203(a)(3), and 203(a)(6), Immigration and Nationality Act.
In light of this congressional policy, the term "business" as used in
section 101(a)(15)(13) has been held not to include ordinary labor for hire,
but is limited to intercourse of a commercial character. See Karnuth, v.
U.S.ex rel. Albro,
279 U.S. 231 (1929); Matter of Hira,
11 I. & N. Dec.
824 (BIA 1965, 1966; A.G. 1966); Matter of P—,
8 I. & N. Dec. 206 (BIA
1958). However, an alien need not be considered a "businessman" to
qualify as a business visitor, if the function he performs is a necessary
incident to international trade or commerce. Matter of Him, supra; see
Matter of 6 1. & N. Dee. 832 MLA 1955); Matter of R—,
3 I. & N.
Dec. 750 (BIA 1949).
We have concluded that the applicant is not engaged in "business," as
that term is used in section 101(a)(15)(B). We recognize that certain
activities of a professional character may be considered `business." See
Matter of Vilanova-Gonzalez,
11 I. & N. Dec. 610, 612 (BIA 1966);
Matter of Sparmann, 11 L & N. Dec. 285 (Actg. D.D. 1965). However,
the applicant's professional activities in the United States go well be..
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yond functions which can be described as necessary incidents to international trade or commerce.
The applicant has indicated that of the portion of his time spent in the
United State a minor fraction is devoted to the solicitation of engineering work. The majority of his time here appears to be spent in connection with the rendition of his professional services. These services are
not performed as an incident to any international commercial activity,
except to the extent that the performance of this service can, itself, be
considered an international commercial activity.
The applicant appears to be in the process of extending his professional engineering practice to the United States. Although we would
hesitate to call the applicant's services "ordinary labor for hire," he is
regularly performing personal services in the United States independent of any other commercial activity. This he may attempt to do as an
immigrant or via the nonimmigrant provisions of section 101(a)(15)(H)
or of section 101(a)(15)(L). These latter nonimmigrant categories afford
some degree of protection for any American workers who might be
adversely affected by the applicant's professional practice. See 8 CFR
214.2(h); 8 CPR 214.2(1). The applicant, however, may not establish a
regular and continuing professional engineering practice in the United
States as a temporary visitor for business.
The decision of the immigration judge was incorrect, and the appeal
will be sustained. We note that the exclusion order entered below will
act as a bar to the applicant's admission to the United States for a period
of one year under section 212(a)(16) of the Act. However, the applicant's
good faith and the other circumstances surrounding this case would
appear to be favorable factors for consideration in any application for
permission to reapply for admission.
ORDER: The appeal is sustained, and the applicant is ordered
excluded anc. deported from the United States pursuant to section
212(a)(20) of - ;he Immigration and Nationality Act.
Irving A. Appleman, Board Member, abstained from consideration in
this case.
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